Questions for the council: Sole bidding. Isn’t Ladywood entitled to best practices?

Sole bidding is not best practice

The bidding process as it is described in the 2023 Cabinet Report largely reflects articles 40.1 and 40.2 of the 2015 Public Contracts Regulations.

Article 40.1 enables contracting authorities to “conduct market consultations with a view to preparing the procurement and informing economic operators of their procurement plans and requirements”, while Article 40.2 provides that “contracting authorities may, for example, seek or accept advice from independent experts or authorities or from market participants”.

However, Article 40.3 states that “advice may be used in the planning and conduct of the procurement procedure, provided that it does not have the effect of distorting competition”.

In view of this, we demand the review of the procurement process undertaken by BCC’s legal advisor, Pinsent Masons LLP, and the proceedings of the nine dialogue meetings that followed, to be published for the sake of transparency.

We recognise that the 2015 Public Contracts Regulations allow for contracting authorities to carry out market consultations, yet there is no specific provision for sole bidding. While sole bidding is indeed possible with the current regulatory framework, expert advice does not consider it best practice in public procurement.  

• nconsistent reporting of procurement procedure

There were major and concerning inconsistencies in the description of the bidding process in the 2023 Cabinet Report.

In the Cabinet Report, the bidding process is described as follows:

• On April 2019, the procurement process formally commenced with the publication of a contract notice, advertisements and press releases.
• “Three organisations expressed an interest and were requested to complete and return a Selection Questionnaire (SQ) by 8^th May 2019”.
• “Following the evaluation and moderation process, the then Acting Director, Inclusive Growth approved and signed off the shortlist of 3 bidders to proceed to the Dialogue Stage”
• “On 19th July 2019, the three shortlisted bidders were issued with the Invitation to Participate in Dialogue (IPD) document. This formally commenced the dialogue stage of the procurement process.”
• “On 14th September 2020, after four dialogue meetings, one of the bidders confirmed that they were withdrawing from the process”
• “On 20th November 2020, (after six dialogue meetings) another bidder also withdrew from the procurement.”
• “During the dialogue stages, the remaining bidder was invited to present their proposals to the Leader of the City Council and the Ward Members for Ladywood.”
• “The dialogue stage was formally closed on 10th October 2022 when it was confirmed that the Council had one solution capable of constituting the most economically advantageous tender, meeting the requirements. The bidder was advised on the same day and simultaneously issued with the Invitation to Submit Final Tender (ISFT) document and supporting legal documentation”
• “The third stage of the process was to request final tenders. During this period, the bidder had the opportunity to contact the Council via the Intend portal if there was any doubt as to the interpretation of the ISFT documentation or if they considered that any of the requirements were ambiguous. All clarification questions received were duly responded to the bidder before the tender return deadline.”

The 2023 Full Business Case (Appendix 2: D2), however reports the bidding process as follows –

• “A total of 6 firms responded to the PQQ and 3 were invited to proceed to Stage 2” [Dialogue Stage]
• “Selected bidders were issued with an Invitation to Participate in Dialogue (IPD) This included the requirements for the dialogue stage, including draft heads of terms and the Council’s detailed objectives and evaluation criteria for awarding the contract A number of structured dialogue meetings were planned throughout this period between the Council and individual bidders to discuss key elements of the requirements; for the Council to provide constructive feedback on bidder’s evolving solutions, and for both parties to discuss and agree appropriate changes to the draft Development Agreement. As a condition of engaging in this stage, bidders were required to enter into confidentiality agreements and the Council established secure procedures to ensure that each of the bidder’s intellectual property, identified as part of their proposals, remained confidential.”
• “Of the 6 bidders that entered the Dialogue stage, 3 withdrew, leaving 3 bidders to proceed to Stage 3” [Final Tender and Evaluation]
• “Stage 3 commenced with the issue of the Invitation to Submit Final Tenders (ISFT). The Council indicated that it could issue a draft ISFT to Bidders during dialogue to enable bidders to provide feedback before dialogue was closed. Bidders were required to submit their tenders in response to the ISFT and on the basis of the solutions agreed during dialogue. Final tenders were to be evaluated on the basis of the best price quality ratio, in accordance with the evaluation criteria, and a preferred bidder was to be recommended. Tender evaluation, incorporating clarification requests and responses from tenderers, was undertaken by representatives of BCC and overseen by the Council’s procurement Team with further oversight provided by Legal Advisors”

The discrepancies are:

• The number of firms expressing interest is inconsistent. The Cabinet Report states that three firms expressed interest and returned the SQ questionnaire, while the Full Business Case states that six firms completed the questionnaire.
• Both the Cabinet Report and Full Business Case report that three firms were invited to participate in the dialogue stage. Yet, the Full Business Case then states that six bidders entered the Dialogue State, three withdrew and three processed to the Final Tender and Evaluation.
• The Cabinet Report states that two bidders withdrew at the dialogue stage, and the only one bidder was invited to submit the final tender (ISFT). Yet the Full Business Case seems to state that multiple bidders, not a sole bidder, were invited to submit their tenders in response to the ISFT. Final tenders, and not a final tender, were then “to be evaluated on the basis of the best price quality ratio, in accordance with the evaluation criteria, and a preferred bidder was to be recommended”.

We demand further clarity and transparency in the description of the bidding process.

We regret that councillors voted and were made to vote on documents that were inconsistent.

We do not accept the argument that these are typos and clerical errors that can be easily amended. Given the scale of the investment and the impact that this project will have on over 6000 residents of 1,979 homes we expect and demand the council to exercise the utmost care and professionalism in their reporting duties.